This is a very unusual and perhaps unprecedented occurrence.
It raises questions about the presumption of innocence given the possibility that
the United Nations Security Council could refer the situation in Syria, and
with it the case of Assad, to the International Criminal Council.
Before the existence of international criminal justice it
may have been appropriate for senior international public officials to condemn individuals
in such a manner. There was no possibility of trial at the international level.
The issue of the presumption of innocence in judicial proceedings did not arise
in any realistic way.
Everything has changed in recent years as a result of the development of international criminal justice institutions. Perhaps this
means that people like the Secretary-General of the United Nations need to be
more prudent in their statements than they might have been a few decades ago.
Were Assad ever to be charged before the International
Criminal Court, he would have an arguable case that his right to the
presumption of innocence – enshrined in article 66 of the Rome Statute – has been
breached by Ban Ki-Moon’s statement.
In a case with many similarities, the European Court of Human Rights has held that where a
senior official in the government condemned an individual of a crime before he
or she had been brought to trial, an issue of the presumption of innocence
arose. In Allenet de Ribemont v. France,
the Court held there had been such a breach, referring to ‘a
declaration of the applicant’s guilt which, firstly, encouraged the public to
believe him guilty and, secondly, prejudged the assessment of the facts by the
competent judicial authority’.
It would be preferable for the Secretary-General to
say ‘there may be serious grounds to believe Assad has committed crimes against
humanity and he should be brought to trial to establish if this is the case’ or
something similar. This is a better message in that it signals the gravity of
the charges against Assad but at the same time insists upon the integrity of
the judicial process.
It is not the first time this is an issue and I wrote about it in my doctoral thesis. The most clear example can be found in the list (updated on July, 1985, among other dates) of
ReplyDeletepersons considered responsible for apartheid under the International
Convention on the Suppression and Punishment of the Crime of Apartheid. The list was compiled by the Ad Hoc Working Group of Experts on
Southern Africa at the request of the Commission on Human Rights. See for instance UN doc. E/CN.4/1984/8.
Sorry for delay commenting on this one.